Taingahue v Police HC Timaru CRI-2011-476-000009

[2011] NZHC 1824

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2011-476-000009

ABBE LEE TAINGAHUE

Appellant

v

POLICE

Respondent

Hearing:         8 November 2011 (by telephone) Appearances: M J de Buyzer for Appellant

A R McRae for Respondent

Judgment:      9 November 2011

JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      Mr Taingahue pleaded guilty to three charges of theft in the District Court. He was convicted and sentenced to a term of imprisonment of three months and ordered to pay reparation.

[2]      He filed an appeal against sentence.

[3]      The appeal was heard by way of conference call.

[4]      At the end of the conference call, I advised counsel I had come to a clear view that the appeal should be dismissed.  My reasons for that decision now follow.

TAINGAHUE V POLICE HC TIM CRI-2011-476-000009 9 November 2011

Facts of the offending

[5]      All three thefts involved stealing from shops.

[6]      The first offence occurred on 27 June 2011 and involved theft of food valued at $51.90 from a supermarket.

[7]      The second theft was committed while Mr Taingahue was on bail for the first offence.   On 9 July 2011 he stole several DVDs and Blu Ray discs from a video store.

[8]      Police executed a search warrant and discovered various DVDs stolen from another video store sometime between May 2009 and 15 July 2011.

Sentencing in the District Court

[9]      The  information  before  the  District  Court  Judge  included  a  pre-sentence report.

[10]     The report told the Judge that Mr Taingahue is 32 years of age and currently employed as a dairy worker.   He has an extensive criminal history with over 90 previous convictions committed since 1996.   The report describes the previous offending as mainly comprised of dishonesty-related convictions, interspersed with numerous driving and violence offences.

[11]     Significantly, Mr Taingahue had been sentenced to a term of imprisonment in December 2010 for very similar dishonesty offending.   The current offending occurred while he was still subject to release conditions, including a condition that he attend psychological counselling.

[12]     He was assessed at high risk of offending.

[13]     The report concluded with a statement that in the view of the report writer, a custodial  sentence was  the only reasonable  recommendation,  all  other  sanctions having been exhausted in the past, none of which had produced any discernible decrease in Mr Taingahue’s dishonesty offending.

[14]     In his sentencing notes the District Court Judge summarised the facts of the offending, the contents of the pre-sentence report and submissions made by counsel.

[15]     He stated that in his view, the only option available which would adequately meet the need for denunciation and deterrence was a short term of imprisonment.

[16]     The Judge continued:

[10]     Having regard to the totality of your offending and bearing in mind your past history, I adopt an overall starting point of four months’ imprisonment.  I reduce that to three months’ imprisonment on account of your guilty pleas and your offer to pay reparation in full today.  I expect that reparation will be paid.  If it is not, I may re-call you and re-sentence you.

[11]      On each charge, you are therefore convicted and sentenced to three

months’ imprisonment.  I impose no release conditions.

[12]      On CRN 0531, I make an order for reparation in the sum of $240. On CRN 0651, I make an order for reparation in the sum of $150.  Payment is to be made forthwith.

[13]     Mr Taingahue, I hope counsel is right and you are on the cusp of change.  If you really care about your family, and you care about their future and your future, you will put an end to this repeat offending.  If you come back before the Court on further dishonesty charges, you should know you will be writing your own sentence.

Grounds of appeal

[17]     Mr de Buyzer advanced two grounds of appeal, namely that the Judge had erred in principle and that the sentence imposed was manifestly excessive.

[18]     In submitting that the District Court Judge erred in principle, Mr de Buyzer pointed out that the Judge’s starting point of four months’ imprisonment was in excess of the statutory maximum.  That was wrong when the Judge was intending to impose concurrent sentences as opposed to cumulative sentences.  The methodology was wrong and no allowance or insufficient allowance was made for mitigating factors.    These  included  not  only  the  guilty  plea  and  remorse  as  exhibited  by payment of reparation on the day of sentence, but also a glowing work reference.

[19]     For the Crown, Mr McRae accepted that the District Court Judge had erred. However, he also submitted that the end sentence imposed was one that took into

account all relevant considerations and was not one that could be considered to be manifestly excessive in the circumstances.

Discussion

[20]     It is well established that the focus of an appellate Court should primarily be on the end sentence rather than the means by which the sentencer has arrived at that end sentence.

[21]     I am satisfied in this case that regardless of the methodology adopted, an effective end sentence of three months’ imprisonment was appropriate.  I accept, as emphasised by Mr de Buyzer, that the individual offences in themselves are at the lower end of the scale.  However, there were significant aggravating factors namely the fact that this was recidivist offending, occurred while Mr Taingahue was on bail and it occurred while he was subject to release conditions.

[22]     In  those  circumstances,  and  even  making  allowance  for  the  personal mitigating   factors,   a   sentence   of   three   months’  imprisonment   was   entirely appropriate.

[23]     In my view, appellate intervention is not warranted.

[24]     The appeal is accordingly dismissed and the sentence of the District Court

Judge confirmed.

Solicitors:

Berry & Co, Oamaru

Crown Solicitor’s Office, Timaru